Appeals Court Rules Against Google On Keyword Ads

Eric Goldman writes "The Second Circuit Court of Appeals ruled against Google in Rescuecom v. Google (PDF), a trademark infringement lawsuit over Google's keyword advertising practices. The court said: 'The Complaint's allegations that Google's recommendation and sale of Rescuecom's mark to Google's advertisers, so as to trigger the appearance of their advertisements and links in a manner likely to cause consumer confusion when a Google user launches a search of Rescuecom's trademark, properly alleges a claim under the Lanham Act.' While this result hampers Google's ability to end trademark lawsuits early, the case is still at an early stage and Google could still win."

Comments

pretty limited ruling

[Trepidity]

The ruling holds little besides the fact that Google did engage in a "use in commerce" of the trademarks. The Court followed the not hugely surprising line of reasoning that: 1) AdSense is clearly a commercial endeavor; and 2) AdSense clearly uses the trademarks, e.g. in its keyword suggestion tool. Therefore Google's claim, that the case should be dismissed immediately for failing to even fall within the scope of trademark law, was rejected.

Of course, Google's uses may still be perfectly legal. All the court's held is that Google does, as a factual matter, use the trademarks, and does so commercially. The case going forward will decide whether that use was within the scope permitted by trademark law.

Is anybody surprised by this?

[Anonymous Coward]

Google ignores copyright, Google ignores trademarks, Google ignores human rights.

What doesn't Google ignore? your private data

mod me down, but you know I am right

"do no evil" is a nice platitude to trot out, but if the NSA promised to "do no evil" and AT&T promised to "do no evil", you'd be OK with them mining all of your info and trampling copyright at every turn?

Re:Is anybody surprised by this?

[Darkness404]

Um, tell me exactly how this is doing any evil. Because I can search for a trademark (and almost every ordinary word is trademarked to some degree), an ad to the side might advertise a competitors product. Tell me how, by searching for iTunes, and an ad comes up for Amazon MP3 is evil? Sure, arguably the censorship issue is evil, but this trademark thing, it isn't evil, not in the least.

Let's make a comparison...

[dada21]

I'm a consultant. People hire me to ask me questions about areas I am an expert in.

A few months ago, someone called me to ask about a product made by an obscure printer manufacturer, Mutoh. They had problems with some of their hardware and support. They asked me "What else is out there that you recommend?" Since I have expertise in this area, I told them I had some options for them. They hired me, and I offered them good advice.

I was a middle man between Customer A and a competitor to Mutoh (in their case, Mimaki). Should I be sued for Trademark infringement?

Google is a middle man between customers looking for information, and people offering answers to those questions. Mimaki has not paid me to dole out information, but in the case of a relatively free market, many "consultants" are actually commissioned by manufacturers to push their products. This isn't uncommon. If someone goes to an electronics store asking about an HP printer, the salesman MIGHT turn and offer an Epson because of a SPIF or other incentive to sell Epson over HP. It's the customer's responsibility to ask "Are you getting anything additional if I buy an Epson over an HP?"

Google isn't selling anyone's trademarked name, they're allowing two third parties to meet over what party A is looking for and party C might have information over to offer party A in their decision-making process.

If anything, this may actually HELP companies who have competitors buying their trademarked names as keyboards on Google AdWords. It offers reputation to the original company, and they can stake out a claim by promoting it.

Anyone who is afraid of their competition is only afraid because their competition is doing something better, cheaper or faster. Trying to shut down Google AdWords for letting 2 third parties interact over a keyword is going to make your market SMALLER, not bigger.

What a bunch of morons.

Re:Let's make a comparison...

[Actually, I do RTFA]

f anything, this may actually HELP companies who have competitors buying their trademarked names as keyboards on Google AdWords. It offers reputation to the original company, and they can stake out a claim by promoting it.

They already have protection for their reputation in trademark law. Trademark law, just like copyright, needs to stop having Google and non-Google versions.

Anyone who is afraid of their competition is only afraid because their competition is doing something better, cheaper or faster.

What crap. ADM motto: The competition is our friend, the customer is our enemy.

Re:Let's make a comparison...

[mysidia]

In this case, the name's not important. The trademark isn't the significant thing here.

HP could have paid them to point out the HP printers any time a customer asks about any type of printer at all, no matter what name.

And more importantly, things are properly labelled. They aren't lying to the customer and saying the HPs are Mutoh printers, that would be confusing.

HP could even pay them to stack up the HP printer boxes on the front of all the shelves, so that to find a Mutoh printer, the customer would have to dig behind the HP printer boxes.

This may be frustrating for Mutoh (and the customer), but it's not trademark that is at issue here, it's product placement deals in general.

Re:Let's make a comparison...

[mysidia]

That is such a flawed argument. Its more like Mc Donalds running an ad saying there is a Burger King at such and such address but their isn't a Burger King there is a Mc D's

No, that would be lying. They aren't lying, the ads are in general clearly labelled, if you click the ad, you KNOW you aren't going to the site of the product you originally search for (They CONVINCED you to investigate an alternative), they are just shown when you look for a competitor name.

It's like if you go to a restaurant and ask for a Coca Cola, but they have an exclusivity deal with Pepsi, so they offer to sell you a Pepsi instead. The customer still has a choice, and it is not a confusing one; the competitor's name is used to "find" the customer's search, but is not displayed to the customer in a manner that would be confusing.

And you don't have to go there, or click on the link to see that the sponsored listing IS a different product from a competitor.

This is like having a free directions service, where you call 800#s for directions to a place, you ask the person for directions to McDonalds.

The operator executes a search, and tells you some of the places they can give you directions to.

Because Burger King pays them for placement they first tell you, "If you press *1*, I can give you the directions to Burger King on Maple street"

If you press *2*, I can give you the directions to the McDonalds on Huckleberry lane.

etc...

There is absolutely no customer confusion here. If you choose to Press 1, it's NOT because they used the word 'McDonalds' to convice you by confusion or deception.

They analyzed the choice you made and offered you an alternative based on their deals in place.

Re:Seen the results in action already.

[palegray.net]

True, but it does depend on the circumstances. With the huge number of Adwords campaigns being created on a daily basis, I really can't blame Google for covering their rears. It would be nice if they added some functionality to help automate the process of verifying permission to use a trademark, although offhand I don't know where to start on such a framework. In fact, that kinda sounds like a good idea for a startup, developing a system that would interface between separate organizations for such a purpose.